KAUSHALYA DEVI Vs. MUKUND LAL AND ORS.

JUDGEMENT

(1.) THE consideration of petition for eviction was on the alleged value and utility of the building having been impaired and which had become unfit and unsafe for human habitation. It found favour with the Rent Controller, who ordered ejectment of the tenant but the Appellate Court reversed the decision in the appeal filed by the tenant. The landlord is the revision petitioner before this Court.

(2.) THE petitioner had contended that roof of the tenanted premises had fallen down identified in two places in the site plan filed along with the petition. He had also contended that "the wall connecting two rooms and shown in the site plan was not in existence to extent of half share and that the other portion of the shop was deteriorating day by day." The petition had been filed on 15.01.1986 but it appears that he had also independently filed a civil suit for injunction restraining the tenant from undertaking any major repairs in the property. Along with the suit, he had moved an application for appointment of a Local Commissioner, who had inspected the property on 23.01.1986 and filed a report. The Local Commissioner's report was filed before the Rent Controller and the Local Commissioner had also been examined. The landlord had also filed a site plan drawn by a witness AW -1 on 10.01.1986. The site plan and his witness showed that the roof of the tenanted premises had fallen down in some places.

(3.) THE Appellate Court reversed the judgment by making reference to a decision of the Hon'ble Supreme Court in Om Parkash v. Amar Singh, 1987 (1) RCR 326 where the Hon'ble Supreme Court dealt with an issue of the effect of closing a verandah and replacing the damaged roof by placing a partition in the roof and held that they did not amount to material alteration. The case had not dealt with the issue of the building being unfit and unsafe for human habitation and therefore, there was no scope for consideration of any evidence that the building had been not in a fit state for continuance in possession of the tenant. The reliance of the Appellate Court on the judgment of the Hon'ble Supreme Court, which was rendered on a different ground of eviction, on a different set of facts was absolutely wrong. The Appellate Court also found from the evidence of the person AW -1, who had drawn a site plan that he had made reference only to the portion of the roof as having fallen and he had not made any mention about the condition of the wall itself. The Appellate Authority, therefore, reasoned that the wall was in a good condition and discounted the report of the Local Commissioner, who had made specific reference to the wall as having fallen off in four layers. The Appellate Authority failed to notice that the petition had spelt out the bad condition of not merely the roof but also the walls and if there was ever a lack of reference in the site plan about the condition of the wall, there had been adequate reference to the condition in petition and there was also evidence to support the same by the person, who drew up the site plan, besides the Local Commissioner who had submitted a report after a personal visit. This is a clear case where substantial evidence was available about the nature and condition of the building to assume that it was unfit and unsafe for human habitation. The appeal had been allowed by a wrong reference to a decision that did not apply to the facts of the case. It found inconsistency between the report of the Local Commissioner and the person who had drawn the site plan when there was indeed no inconsistency. Each person had his perception of what was gaining his utmost attention. The report of the Local Commissioner gave emphasis to the condition of the wall while the person who had drawn up the site plan had made reference to the roof as having fallen in two places. The report of the Local Commissioner and the person who had drawn up the site plan were both examined. Their evidence must have been read conjointly with the petition averment. The finding of the Rent Controller was upset by perverse appreciation of the facts that resulted, in my view, to the miscarriage of justice.